Investigate war crimes in Tigray, or
It is not easy to collect evidence of war crimes, in an active conflict, but the country’s future may depend on a credible investigation
After nearly four months of violent conflict in the Tigray region of Ethiopia, the government has admitted that widespread crimes have been committed, including massacres and sexual violence, as well as widespread looting and the destruction of refugee camps. Despite credible reports that members of the Ethiopian armed forces have perpetrated some of this violence, the government has rejected calls for external involvement in investigations, arguing that it is capable of conducting impartial investigations and holding perpetrators to account. Whether such an accountability process will be satisfactory to victims and survivors of the conflict, however, remains to be seen.
Ethiopia’s President Sahle-work Zewde in a statement on 18 February acknowledged her “awful awakening” to the horrific violence when she confirmed sexual crimes were committed in the region. The Minister of Women, Children and Youth, Filsan Abdullahi, as well as members of the joint task force for investigating conflict-related sexual and gender-based violence in Tigray, stated on Twitter on 11 February that the investigation concluded: “Rape has taken place, conclusively and without any doubt.”
Tigrayans and concerned observers argue that such allegations must be immediately investigated by an independent investigative body. Investigations that are seen as credible and impartial might help to keep the divided country together. Without them, Addis Ababa’s relations with Tigray may sour permanently. US Secretary of State Antony Blinken added his voice this week, calling for an international investigation into atrocities.
One means of restoring faith in the federal system and providing some sense of closure to victims could be a credible criminal justice process, alongside a broader accountability process, which could help establish the facts of what took place during the conflict. Establishing the basis for a shared understanding about what took place during the conflict is believed to be an important part of dealing with the past and preventing recurrence, according to a large body of peace-building research.
Evidence can make or break accountability processes
The credibility of any justice process, however, depends on whether evidence can be gathered quickly, or it risks being destroyed or degrading to such an extent that it is no longer legally viable. Criminal accountability may be impossible if evidence collection is marred by the same kinds of communication blocks and politicized obstruction that has affected the delivery of humanitarian assistance to the region.
“You can’t really stress how important it is to gather evidence as quickly as possible,” said Dr Mark Kersten, an international legal expert and research fellow at the University of Toronto. In any conflict, evidence may be destroyed by war crimes perpetrators seeking to cover their tracks. “But what is perhaps more latently troublesome is the fact that evidence simply degrades over time,” Dr Kersten added.
The need to investigate quickly and safely store evidence is heightened in sexual and gender-based violence (SGBV) cases, which are difficult crimes to investigate even in nonconflict contexts. Best practices in evidence collection and preservation for SGBV cases in conflict recommends storing reports and documents in a digital cloud in order to protect victims and survivors as well as investigators and caregivers.
The internet blackout that persists across Tigray makes this kind of evidence storage and documentation impossible. Furthermore, hospitals and health centres are operating at reduced capacity due to widespread looting, according to Doctors Without Borders (MSF), and the region is facing a shortage of rape kits and preventative HIV medications used to treat victims and survivors.
In situations where physical evidence is difficult to collect or preserve, witness testimony is essential in building a case in sexual violence crimes. However, testimony too must be gathered quickly and safety stored.
“The longer you take between a traumatic event and the collection of witness testimony the less credible that testimony can be,” said Dr Kersten, referencing research that shows the complex ways in which trauma interacts with memory.
“The longer it takes an investigation the less likely that the evidence is going to be credible,” says Chidi Odinkalu, senior team manager for the Africa Program of the Open Society Justice Initiative. “The earlier you deploy for investigation, the better, otherwise evidence can be lost and unquestionably, quite a lot has been lost and deliberately by Prime Minister Abiy Ahmed’s government, who have had enough time and latitude to perpetrate whatever they want to without the stress of accountability.”
An Ethiopian women’s rights advocate, who has been in regular contact with first responders in sexual violence cases in Tigray, told us that in addition to violence perpetrated by armed groups, at least some of the sexual violence being perpetrated appears to be opportunistic, reflecting the breakdown of security and justice systems in the region.
“Some of [the assaults] are just people who have the opportunity to rape now, because the police are not functioning, only the military is there and they aren’t necessarily focused on law and order,” she said. “There is no avenue for bringing charges forward right now because the justice system isn’t functioning.”
Her testimony is supported by a chilling video that appeared last month, in which a man in an Ethiopian National Defence Force (ENDF) uniform asks why women were being raped in Mekelle after federal forces had regained control of the city. “It wouldn’t be shocking had it been happening during the war,” he says in the recording. “But at this moment, while the federal police and local police are back in the town, it is happening repeatedly.”
The Ethiopian Human Rights Commission (EHRC), the federal body charged with investigating human rights abuses in the country, has led several fact-finding missions, mostly in Western Tigray, where federal and Amhara forces are in control of large swathes of territory. Security concerns prevent more comprehensive investigations from taking place in regions that are not under federal control. What this means is that even if some crimes are being investigated, many more will go uninvestigated.
Observers and activists have also questioned whether Ethiopian authorities will be able to fairly and thoroughly investigate crime committed by members of their own security forces.
In a recent monitoring report, the EHRC reported killings, bodily and mental injury, SGBV and other human rights violations. “In the past two months alone, 108 cases of rape have been reported in Mekelle, Ayder, Adigrat and Wukro hospitals,” it reported. These likely reflect only a small percentage of the crimes, based on research that suggests a high prevalence of underreporting in SGBV crimes, even in nonconflict contexts.
The chief commissioner of the EHRC, Daniel Bekele, strongly urged for “a more focused and immediate action to put a stop to the alarming and deplorable human right violations caused by gender-based violence and injuries to children”.
Women, Children and Youth Minister Filsan stated that “the Ethiopian government is not only committed but rather champions of the rule of law and does not tolerate violence against women”. The president has also called for “responsibility” in the wake of these crimes.
However, the volume of allegations continue to grow — just this past week, several reports emerged detailing incidences of mass violence and ethnic cleansing across Tigray. The regional police and justice system in Tigray is not functioning; the EHRC may not have the manpower necessary to launch a large number of comprehensive investigations; and the federal police are not trusted in Tigray.
Domestic vs international investigations
The federal government rejected calls for an external independent investigation in December. According to Redwan Hussein, Ethiopia’s ambassador to Eritrea, Ethiopia will only invite assistance if “it feels that it fails to investigate.” Assuming it can’t do so independently is “belittling the government”. Rights groups, UN representatives and even the Tigray People’s Liberation Front (TPLF) say a peaceful solution to the war must include international investigations of war crimes in Tigray.
While it may seem like an obvious conflict of interest, in practice it is not uncommon for governments to investigate war crimes committed by members of their own security forces. Under International Humanitarian Law (IHL) parties to conflict can be tried in civilian or military courts for violations of IHL. The US, for instance, has repeatedly claimed sole jurisdiction over war crimes investigations committed by its own security forces as parties to conflict in Afghanistan and Iraq, often resulting in few, if any, criminal charges.
International rights advocates, including Human Rights Watch and Amnesty International, have called for a Un-led investigation into allegations of indiscriminate attacks by Ethiopian federal troops, requesting the UN Human Rights Office send a fact-finding team to Tigray to take the appropriate measures to save evidence of abuses. A UN Human Rights Council resolution could also establish an independent investigative body, as has been the case in
Syria, Myanmar and South Sudan, among others.
In the aftermath of a series of damning reports on the situation in Tigray, particularly Amnesty International’s report on the massacre in Axum, the government committed to opening up access to Tigray. The EHRC’S statement in response to Amnesty’s report claimed that they are continuing to undertake investigations on the ground in Tigray, “including with the support of relevant technical experts from international human rights agencies”. However, it is not yet clear what this relationship will look like, nor how much access independent media will have to Tigray. There are already reports of fixers being arrested, raising questions about the government’s commitment to increasing accessibility to information in the region.
Violence against civilians in Tigray during the conflict could constitute crimes against humanity and war crimes under international law. However, many of these crimes are also punishable under Ethiopian criminal law, as domestic crimes of murder and rape, among others.
So far, a purely domestic accountability process appears to be the approach favoured by the government. But how impartial such a process could be, particularly if government or security officials are found to have perpetrated or enabled these crimes, remains to be seen.
Even if domestic investigations are legally permissible, they may not be politically ideal, given the distrust and polarisation that characterises Ethiopian politics today. Most Tigrayans do not believe the government will impartially investigate crimes committed by all sides of the conflict — a perception that has only been heightened as government officials place blame for conflict-related atrocities solely on Tigrayans.
The mistrust of the federal justice system in the current climate might mean that even if it were possible for the government to conduct impartial investigations, the findings may not be credible in the eyes of Ethiopians, especially in Tigray, who do not currently trust the federal government. In such a polarised political environment, international or regional investigations may lend credibility to any accountability process that emerges from investigations into conflict atrocities.
“Because of the distrust, most activists are looking beyond Ethiopia for help with investigations —
maybe the UN, even the AU or the Intergovernmental Authority on Development. These institutions may be more trusted than the government,” said a Toronto-based Tigrayan activist and member of the civil society group Ethiopian Community for Peace. “The more diverse groups you can involve, the better, in any investigation.”
“The government [...] sees investigations as a short-term game, not from a long-term, broader reconciliation perspective. That’s what we are pushing for. We think that there should be a reconciliation process so that people would also feel like they are still a part of Ethiopia. That the central government is also their government. Many Ethiopians are in fact not really on good terms with being Ethiopian at the moment,” the activist added, referring to secessionist sentiments among some activists.
International outcry, government denial
The Office of the UN Special Adviser on the Prevention of Genocide has received reports of “serious human rights violations” committed by parties to the conflict. These include extrajudicial killings, sexual violence, looting of property, mass executions and impeded humanitarian access. The Special Adviser concluded that failure to address violence compounded with other risk factors for violence escalation, “including a culture of impunity and lack of accountability for serious violations.”
In response to an Amnesty International report that documented indiscriminate shelling by Ethiopian and Eritrean forces, as well as massacres of civilians by Eritrean forces in Axum, the Ethiopian ministry of foreign affairs and other top government officials partially accepted that atrocities took place, but seek to undermine the validity of the report, accusing the rights group of using fake sources without providing evidence for their claims.
The official government narrative so far is that only Tigrayans are responsible for the crimes. The president’s only statement on the conflict so far stated that prisoners who were released due to the Covid-19 outbreak were responsible for the attacks. The foreign affairs ministry alleged (without evidence) that 13 000 released prisoners were responsible for “rape, plunder, callous and intentional mass killings”. These findings contradict reporting that suggests a lot of violence has
been perpetrated by ENDF soldiers, as well as Eritrean forces.
With general elections coming up in June, Ethiopia may not be committed to prosecuting its own soldiers. “We need to distinguish between legal capacity and political will,” said Dr Kevin Jon Heller, professor of international law and security at the University of Copenhagen.
“Insofar as Tigrayan forces are committing crimes, the government could easily prosecute those. But if what the government is trying to do is rebuild a fragile state, only prosecuting rebels is probably not the best thing to do.” Investigations cannot be credible if they focus only on one party to the conflict.
One explanation of why Prime Minister Abiy Ahmed’s administration is reluctant to open access to the region could be that he has lost control of other armed forces in Tigray — namely the Amhara militias and Eritrean forces.
Ethiopian forces are believed to control between 60-80% of the region, and mounting evidence suggests that thousands of Eritrean soldiers have fought alongside Ethiopian forces in Tigray, and might still occupy parts of the region.
The Ethiopian government denies these allegations. However, last month a military commander admitted that Eritrean troops were present in Ethiopia, as did Mulu Nega, the chief executive of the Transitional Government of Tigray, in a leaked audio recording from a meeting with Mekelle University.
International diplomats and observers, including the US, have cited credible reports of Eritrean involvement as they call for the withdrawal of troops, along with independent investigations. Ethiopia is
said to have given the Eritrean forces an ultimatum to leave.
It is also possible that the federal government wants to maintain control over the investigations because it is trying to hide or destroy evidence that would implicate its own soldiers. Satellite images and reports on the ground show several villages throughout the region, especially those bordering Eritrea and Amhara region, have been burnt down. Two refugee camps in the north, hosting over 20 000 refugees, mostly from Eritrea, have been systematically burnt down.
The federal government maintains that it is fighting a legitimate war against a dissident group, the TPLF, that attacked a military base in the northern region in November. The TPLF has said this attack was preemptive, anticipating government reprisal after the regional government defied federal orders to postpone elections in September 2020.
The TPLF was a prominent part of a coalition government, the Ethiopian People’s Revolutionary Democratic Front, which included Abiy Ahmed, that ruled the country from 1991, after deposing the communist Derg regime.
The new government of Abiy Ahmed is trying to distance itself from the past three decades, and he appears to want to hold the TPLF responsible for all the historical injustices of this period. This has further entrenched the divide and provided fertile ground for hardliners in Tigray and the diaspora.
Could justice prevent further dissolution?
Abiy’s government can no longer afford to think of only the present moment as it considers how to proceed with investigations and accountability. Impunity and a lack of accountability for violence was a significant challenge in Ethiopia long before the conflict in Tigray began. At the start of his term, Abiy seemed to recognise the important role that justice and reconciliation would play in his country’s transition.
In 2019 his government established the National Reconciliation Commission “to establish free and independent institutions that inquire and disclose the truth of the sources, causes, and extent of conflicts and which takes appropriate measures to enable for lasting peace and to prevent the future occurrence of such conflict”.
He also closed the notorious
Maekelawi prison in Addis Ababa, which was for decades associated with state-sponsored repression, and committed to a programme of justice and accountability. Abiy’s rapprochement with Eritrea, an arch enemy, won him the Nobel Peace Prize in 2019.
Some critics argued that Abiy needed to go beyond symbolic gestures and commit to criminal accountability as well as reconciliation.
But there were signs that in the early days, the new government recognised that Ethiopians who suffered from abuses of state power, as well as from sporadic political violence across various regions, deserved justice and accountability.
Low-intensity conflicts have simmered across Ethiopia for years now; from the Somali region to Oromia to Benishangul-gumuz to Tigray and beyond — decades of unaddressed fears and political grievances among communities that are increasingly defined along ethnic lines.
The weeks-long hunger strike by Jawar Mohammed and Bekele Gerba, two key Oromo political figures, would likely result in conflict erupting in Oromia again if either of them died. The 1991 constitution may bear some responsibility for the regional fragmentation we are seeing today, due to the extent to which political power ascribed to particular ethnic groups within regions that were never ethno-linguistic monoliths.
Now, credible and transparent justice processes must become a reality in Tigray — and Ethiopia as a whole — if Ethiopia is to turn things around. Allowing for external investigations could lend credibility to the Ethiopian government’s stated commitment to accountability. Credible, broad-based investigations could form the basis of justice and accountability processes that might reduce the chances of further mass violence and unresolvable border conflicts between regions that do not see themselves as part of the new Ethiopia.
Broad-based accountability will be essential to avoid a protracted conflict in Tigray, and possibly other regions in the future. The window of opportunity for meaningful investigations and evidence collection, however, is rapidly closing. Doing justice in Ethiopia was a daunting task even before the conflict in Tigray began — four months into active fighting, the challenge grows larger by the day, as do the stakes of getting it wrong.